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Our Brave New World: EHR and the "Ownership" of Health Information, Part II

by Dan Orenstein, Senior VP and General Counsel of Legal

athenahealth Senior Vice President and General Counsel Dan Orenstein continues his earlier article about the past and potential future of the nation's health information.

Static Information (Old World) vs. Real-Time Information (New World)
"Old World" physical files record the past: past encounters, past diagnoses, past treatments, and past interactions. Each record is primarily static. It can be updated, but it doesn't provide useful, current information to anyone other than the person directly reviewing it. Any candidates for clinical study are identified through the laborious exercise of chart pulls and a retrospective review of historical documentation.

In the "New World," the most significant promise and purpose of an EHR (electronic health records) system is real-time interaction among multiple caregivers to enable better care, real-time patient communication, the ability to chart care longitudinally, and the ability to query the data in real-time and leverage it as described above. This is far from static.

The Middle Path
The Old World is eroding slowly, but continues to live with us. It persists in regulation which will take a long time to update, and in the ways we exchange information. It also presses on in our psyches, because we have lived, worked, and breathed that Old World paradigm for so long.

Software-based EHR systems often represent the inertia of the Old World paradigm, landing much of the industry on a "Middle Path." For example, in many systems: (a) users record structured data, but it's not reconciled with results or data from other systems; (b) paper forms are scanned and included as images, trapping data within the image and preventing it from being aggregated, benchmarked, analyzed, and reported out; or, (c) there is little capability to exchange data with other systems, which results in the “silo-ing” of data in discrete, local systems, such as one facility or a single hospital system.

Systemic inertia—as a result of law, regulation, tradition, and legacy systems—is partly what is slowing down an inevitable paradigm shift. This inertia is also present in the idea of "monetizing" health data, acting as a barrier to a discussion about how to best use data.

"Monetization" of Data
The concept of monetizing health data often reflects the persistence of the Old World. The logic goes like this: "The medical record is a tangible thing. Existing laws and historic practice affirm this. Therefore, the data in this tangible record must be owned by someone. But I understand that, in the New World, the deployment and uses of the data can potentially have great value that are still to be determined. Therefore, I must make sure my ownership of the data is secured."

This thinking can lead to a grasp at ownership rights anytime raw data is exchanged or made available, occurring often when the "owner" or "originator" of the data is unclear, or when no value has been added to the data other than the incidence of custodianship at some point in time. A typical EHR will involve inputs from many sources—patients, payers, providers, laboratories, suppliers—and will be increasingly accessed by more parties and shared more broadly. This makes it very difficult to determine data "owners."

This often diverts attention from an important discussion: What is the true, long-term value of information when it helps achieve goals such as better care coordination, better understanding among caregivers, and greater patient engagement? This isn't to say parties should not protect their rights when they've added value to a data set—there should be ways to compensate them for that added value. But in many cases, a lot of time is wasted discussing the wrong things, which don't provide much value to anyone. It's usually more valuable to focus on the mutually appropriate uses and disclosures of health data, a New World-grounded approach that focuses on maximizing the value and long-term benefits of the data.

Moving from the Middle Path to the New World
We need to think about health regulation in terms of how it can enable change to promote the use of structured data and data exchange, and how it can help discourage "siloed" information. We should re-orient the legal and regulatory landscape -- and our dialogue about health data -- towards ways we can best access and deploy the data to achieve better outcomes, lower costs, and better engagement, and far away from restricting data to designated "owners."

What do you think? How can we make this process happen faster, to yank us out of the Old World and into the New?

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